Transformation is a part of our life. Receptive mechanisms of world-wide
meeting, international governance, multiplex economic inter- relations,
supported by the advanced communication techniques and other technologies have
all played an immense role in promoting legal theory internationally and being
adopted by several nations.
This had increased the comparative interests
regarding legal institutions and legislations of different countries among the
scholars, intellectuals, jurists, etc. This interest had been noticeable in
comparative constitutional laws. Today, this discipline has gained world-wide
recognition amongst the legal thinkers.
Not only law makers, but even judges do
refer and include the international laws in solving the problem. Comparative
constitutional laws are frequently utilized for self contemplation through
resemblance, pointing out differences and contrasting. By considering the
constitutional legal philosophy as well as other practical similar situations,
intellectuals might be able to increase their understanding regarding the
constitutional philosophies and values and include them (after molding them
according to their situation) in their own constitution.
In this paper, I have tried to explain the comparative constitutional laws, how
it is related with the international laws and its different working mechanisms
with a special focus on Data Protection laws and policies among different
countries such as the United States, Japan, Singapore, India and the European
Union. The analysis briefly provides us with a perspective of an interconnected
and interdependent world. We see how the EU's General Data Protection
Regulations (GDPR) finds its origin from the OECD Guidelines and replaced them
as the foundational guidelines for countries aiming to upgrade and establish
their own data protection policies and laws.
Comparative constitutional law is a separate field, which itself is included in
the larger field of comparative laws all around the globe. This is the newly
formed transformative field of the early 21st century which has expanded the
interest of judges, scholars, lawyers, policy makers, sociologists etc. Now,
even economists have also given their immense contribution in finding out
collectively about the formation and operation of the constitution in different
The mechanism of comparative study is the need of the Hour for the
deep understanding of human attainment, culture and other institutions, because
today human existence is not only limited within the national boundaries but has
crossed all the boundaries and reached all the corners of the globe. Even, the
establishment of the League of Nation (after 1st WW) and United Nations (after
2nd WW) signifies that all the nations are obliged to come together and find out
a unanimous solution to the global issues that has shaken everyone. Learning of
political and legal systems of different nations boosts up a healthier
Comparative study is not any kind of body of rules
rather it provides an approach or technique to know about legal systems and
actions taken out by different nations towards a common problem by scrutinizing
the vantage points, institutions etc.
The socio-economic, political, cultural, and environmental scenarios differ from
country to country. These differences are reflected in their national guidelines
often recorded/written in a document called the Constitution. The constitution
of a country reflects its domestic realities and its future aspirations. It also
provides us with a preview of how a country aims to engage with the
international community, its laws and institutions.
The laws and the mechanisms
of a country are not just influenced by the local and national scenarios but the
international events too, affect them. This observation is evident through the
comparative analysis of data protection law of the US, the EU, Japan, Singapore
and India. It conveys how countries are trying to meet the international
standards regarding exchange of goods, services and personal data in order to
reinforce and ensure safe and secure development of their countries.
Meaning Of Comparative Constitutional Laws
Comparative Constitutional law is definitely an analytical high spirited field
which surrounds progressively wider arrangements of techniques and perspectives.
Comparison is done between different legal systems to identify the best
applicable method to resolve the latest issue so far. This had a wider range of
interdisciplinary interests and had been institutionalized with novel world-
wide associations facilitating gatherings in order to interchange several ideas
and forming collaborative projects.
In simple words, Comparative Constitutional Laws is the analysis of variations
and affinity among the legal jurisprudences of different countries. It covers up
the study of different legal structures all over the world, in order to take out
the best solution for common global problems. The scope of comparative
constitutional laws have been rapidly increased in the modern world of
internationalism. It is a pedagogical learning of different constitutions in
relation to their creation and functions and how we can combine their
constitutive elements into a societal structure to eliminate the threatening
(Comparative Constitutional Law: Introduction, 2011)Its history can be traced
back to the time of Aristotle, who categorically analyzed the constitutions of
Greek city states. Even traditional thinkers in Asia like in China and India,
provide their ideologies regarding important principles of state polity. Even
the polish, French and American thinkers had viewed the samples of written
constitutions and indulged in the substantial scrutinizing of such models.
Subsequently, previous Constitutions of Latin America, New Granada (1830, 1832),
Venezuela (1830), Peru (1823, 1828), and Argentine (1826) were highly influenced
by Spanish Constitution. Prior studies focused on governance and judicial
reviews. Studies showed that the true face of the political system includes the
political reality of power. More power is in the hands of those who are elected/
appointed, selection being based on gender, caste, political connections etc.
According to contemporary view, Montesquieu was the father of Comparative
Constitutional Law. He says that all the political and civil laws either adopted
or framed should be in favour of people for whom they are made or adopted and
should be in consistent with principles of governmental institutions . It should
provide basic liberty to all its civilians. Whenever, the thinkers did
comparative analysis of the legal system of different countries regarding a
particular problem, then, it should be in their entirety.
Comparative method has been adopted by India. The best example is Indian
Constitution which is totally created by comparing different countries'
constitutions. After analyzing different constitutions, that provision which
fits in our country's situation was adopted by our constitution makers. For eg.
Fundamental Rights (from USA), Fundamental Duties (from USSR), DPSP (from
Ireland), liberty, equality and fraternity (from French Constitution) etc.
Comparative method forms an intrinsic part of our Constitution.
Relationship Between Comparative Laws And International Laws
(menon)After the 2nd WW was over, nearly 100 countries got freedom. All wanted
to have the best governing system, hence, they include the basic principles and
values which were globally accepted and reinforced by international rules. They
did it through comparative analysis. The grundnorm of every country's legal
system is its constitution. In simple words, the constitution forms the base of
the legal system in every country.
Further on, constitutional law all over the
country has recognized the basic human rights which are necessary for the
survival of every human being. All provisions in International conventions and
treaties focused on protection of human rights. For eg. UN Charters,
International Bill of Rights, etc. The third beckon of democracy (i.e. in the
mid 1970s) brought on everyone's attention to the constitution as a means of
The drafting of the Constitution became the first priority of
every culturally variant state aspiring that it could help them out to resolve
differences. The spread of constitutionalization and judicialization (profane
increase in functioning of court) all over the world have raised the demand of
Comparative law is definitely helpful for international institutions and
organizations for analysing the global issues and taking a step forward to solve
them. For eg. Terrorism is a global problem. Hence, different countries have
their specified domestic laws on the subject matter.International Organization
can collect data regarding the legislations formulated by different
order to curb terrorism, could make a comparative analysis and at last, could
recommend nations (already having anti-terror laws) that what else
modifications they could include in order to strengthen their laws against
terrorism and basic structure to nations (which don't have the anti terror
laws). Even domestic courts take help from international law to understand
certain legal circumstances and decide the cases.
We could see that the basic
rights covered by international documents are mainly included in the domestic
laws of the signatory countries. It binds the signatory parties to follow the
prescribed modules while forming their domestic laws.
Mechanism Of Comparative Laws In Different Legal System
(Chattopadhyay) According to Montesquieu, principles of laws should be adopted
supporting the people for whom they are made. There is no doubt that comparative
constitutional law includes categorical study of constitutional law,
jurisprudence and political institutions.
Even various constitutional courts all
over the globe had based their decision on Comparative constitutional laws.
Every nation made their domestic laws based on certain principles which have
been internationally recognized. There are various examples where comparative
constitutional analyses have played their roles. For eg, the issue raised
regarding unconstitutionality of death penalty, South Africa had well analyzed
legal history of the state of India, Hong Kong, Germany, Zamaica, Tanzania, etc.
Even when we rose up the issue of gender identification and sex orientation,
courts in USA (in 2 major cases of Lawrence vs. Texa
s (in which court struck
down a Texa Statue for criminalizing homosexual conduct) and Ropers vs. Simons
had formed the verdict had even referred to foreign judgments too. Hence, in
this way, comparative constitutional analysis is necessary for adding or
modifying constitutional provisions for better understanding of the subject and
resolving it. Constitutional supremacy has evolved in America but today has been
adopted by more than 100 countries today.
Most of the countries which have constituted their Constitutions after the
ending if 2nd WW, have 5 common elements in them:
- Inculcates provisions which provide for establishment of main
governmental institutions, explaining relationships between them, provides
privileges to them and mechanism for their removal.
- Provisions mentioning separation of powers among governing institutions.
- All the rights and freedoms granted to the citizens of the country and
provisions regarding remedies to be given on their infringement.
- Mechanism for amending or modifying the Constitution keeping certain
basic features to be in mind (which cannot be amended).
- Provision regarding set up of independent judiciary giving them the
power of Judicial Review the governmental works and authorize them to make
any Act unconstitutional if they are against the basic features of the
It had been seen that mainly constitutional theory and practical application in
the 3 major countries i.e. Germany, Canada and South Africa had been major
derivations of revelation to global jurists. Comparative Constitutional Laws
provide the learning, implementation, expounding of legislations set up by a
nation's constitution. Comparative method provides to fill in the gaps which
have been there in our constitution in a better way.
More comparison provides us
with the best idea in which we can resolve the problems in our country. Although
it had been seen that different societies have distinct circumstances, but the
needs and abilities of humans did not vary much. The main advantage of
comparative analysis is that it specifies the similar or dissimilar situations
with that of other countries and hence, to improve our legal system through the
experiences of others.
If we talk about working of legal systems, it differs from nation to nation
because of different cultures, customs, values, ideologies, etc. Let's take an
example of Adultery (extramarital sexual intercourse with a married woman) laws
in different countries. Starting from India, adultery is no more a criminal act
hereafter the 2018 verdict laid down by SC bench headed by the then CJI Mr.
The court scrapped the 150 years old law by stating that it is in
violation of women rights and dignity and husband could not be controller of
wife. Besides this, adultery is still a valid cause to take divorce. But the
verdict was not whole heartedly because their tradition and customs consider
adultery as an immoral act. Besides Hinduism, Islamic and Christianity also
considered adultery as a sinful crime for which even execution of offenders was
granted. Even not only in India but all around the ancient world, it is believed
to be a wrongful act. Extreme painful punishments were given like Public
Hanging, stoning, whipping, Genital Mutilation and other of tortures (till the
death of offenders).
Even today, there are several countries which still preserve adultery as a
punishable offence. In Philippines, adultery is a crime for women and
fornication for men. Revised Penal Code punishes wife and her adulterous partner
for 6 months imprisonment (once proved). Chinese marriage laws made adultery as
a ground for divorce. Japan decriminalized adultery in 1947, South Korea in
2015. Taiwan made adultery legal finally on 29th May 2020.
Before this, a case
was filed in 2002, where the statute declaring adultery as a crime was
challenged but at that time it was upheld by court believing it as
constitutionally valid. Mostly, major European countries had also decriminalized
adultery like England, Italy, Luxembourg, France, Switzerland, Belgium,
Portugal, Greece, etc. Turkey considered adultery laws as not valid because it
had been violating equality between men and women. Countries following Islamic
laws consider adultery as a sin like Saudi Arabia, Somalia and Pakistan even
punishes the offender with death penalty.
The common ground among the countries that had decriminalized is that the laws
were violating the equality between men and women. The global transferring of
constitutional ideas had been there in legal academics also. Even Indian courts
have relied on international precedents. Like in Naz Foundation case, SC had
referred to three international decisions i.e. Lawrence vs. Texas
the criminalization of homosexual intercourse), Dudgeon vs. United Kingdom and
National Coalition for Gay and Lesbian Equality vs. Minister of Justice
Accordingly, comparative analysis plays an immense role in providing a path
towards changing the whole jurisprudence. South African Constitution formulated
in 1996 and courts formed have been identified as a result of apartheid
movement, which brought new change in the governance of country and a way
forward for the black's rights and identity in other countries too. Then,
Britain, Canada, Israel and New Zealand have marked as a source of Parliamentary
styled sovereignty. These countries have even made certain amendments to their
constitution to include Bill of Rights and Judicial Review.
Comparative Analysis of Data Protection Laws and its Mechanisms in Different
Fair Information Practices Principles (FIPP) are a set of principles that
prescribes how data should be handled, stored, and managed to maintain fairness,
privacy, and security in a rapidly growing global technological environment.
These principles were a result of a Commission appointed by the government of
the United States which inquired into the way data is collected, used, and
regulated. These principles are deemed to be the bedrock of modern data
protection laws across the world. The FIPPS further inspired the Organisation
for Economic Cooperation and Development (OECD) Privacy Guidelines which aimed
at providing a framework for harmonizing national privacy legislations amongst
The OECD Guidelines are deemed to be the first internationally
agreed-upon statement of information privacy principles and have significantly
influenced data protection framework around the globe such as the European
Directive 95/46/EC on the processing of personal data and the free movement of
such data (Data Protection Directive), 2004 Asia-Pacific Economic Cooperation
Framework (APEC Framework) as well as data protection legislation of Australia,
New Zealand, and Japan.
In the EU, the right to privacy is a fundamental right that seeks to protect an
individual's dignity. The European Charter of Fundamental Rights (EU Charter)
recognizes the right to privacy as well as the right to protection of personal
data. Data Protection Directive was the first principal EU legal instrument on
data protection and was influenced by the OECD guidelines.
data landscape led the EU to update its regulatory environment on data
protection. The product of this process is the EU General Data Protection
Regulation of 2016 (EU GDPR). The GDPR sets out seven key principles of
lawfulness, fairness, and transparency; purpose limitation; data minimization;
accuracy; storage limitation; integrity and confidentiality (security); and
accountability. The EU GDPR is one of the most stringent data protection laws in
the world and unlike the previous Data Protection Directive, GDPR being
regulation is enforceable as law in all Member States.
Japan's Act on the Protection of Personal Information was amended to bring it
closer in line with the EU's General Data Protection Regulation (GDPR).
amendment reinforced various provisions of the Act such as:
- Expanding Individual Rights:
by requiring the deleting or disclosure of personal information (PI) in case
of violation of the data subject's rights or legitimate interests; in the
event of a breach. It also includes short-term data as previously the data
was held for six months or more.
- Breach Notification:
Companies are required to notify the individual and the data privacy
authority (Personal Information Protection Commission (PPC)
in case there is an event that potentially causes the violation of individual
rights and interests. The report to PPC shall state the situation followed by a
more detailed report as to the causes and remedial measures implemented.
- Cross Border Application:
The Amendment clarifies that the provisions,
obligations and penalties will now apply to the entities outside of Japan as
well, that supply of goods and services and handle PI from an individual in
- Encouraging Private PI Protection Organisations:
The Amendment aims
to expand the number of accredited organizations providing PI protection advice
or privacy certificates to organizations and companies.
- Increased Penalties:
Penalties for violation of the law have been
increased up to ¥100M (around US$1M). individual violation of a PPC order would
result in up to 1year imprisonment or a fine of up to ¥1M ($10k).
The United States does not have a single, comprehensive federal (national) law
regulating the collection and use of personal data. Instead, there are hundreds
of laws enacted on both the federal and state levels. For example, California,
on 28th June 2018 passed a privacy law which is deemed to be one of the most
stringent consumer protection privacy laws in the nation. It introduced onerous
new requirements and limitations on any business that collects and sells
personal information of California residents.
Though no provision in the US Constitution explicitly grants a right to privacy,
the US courts, however, have collectively recognized the right by piecing
various Amendments made to the Constitution. Various legislations define the
activities and powers of the government such as the Privacy Act, 1974 which is
based on FIPPS, the Electronic Communication Privacy Act, 1986, the Right to
Financial Privacy Act, 1978, etc.
Singapore's Personal Data Protection Act (PDPA) was established to govern the
collection, use, and disclosure of personal data by organisations. It recognizes
the right of individuals to protect their personal data and the needs of
organisations to collect, use, and disclose personal data for legitimate and
The PDPA ensures a baseline standard of protection for
personal data across the country by complementing sector-specific legislative
and regulatory frameworks. This means that organisations have to comply with the
Act as well as the common law and other relevant laws that are applied to that
specific industry when handling personal data. Like the GDPR, the PDPS exerts
extraterritorial reach and is explicitly extended to those who may not even be
recognized under the law of Singapore.
On November 2nd, 2020, the Singapore Parliament passed amendments to the
Personal Data Protection Act 2012. It introduced new exceptions to the terms of
consent such as in a contractual necessity, it allows organisations to disclose
an individual's personal data without their express consent to other organisations. It also included research purposes, public interest, legitimate
interests, and business improvement purposes as exceptions to the collection,
use, and disclosure of personal data.
India's Personal Data Protection Bill, 2018 stems out from the fundamental right
of right to privacy guaranteed by the Indian Constitution. It recognizes the
growing digital economy which leads to the use of critical data as a means of
communication between consumers and the government; consumers and organizations;
or organizations and the government.
Hence, the Bill was established with the
provision to foster a free and fair digital economy where the autonomy of
individuals in relation to their personal data is protected and to create a
relationship of trust between persons and entities processing their data. It
also specifies the rights of individuals whose personal data are processed and
lays down norms for cross-border transfer of personal data. The Bill also
established an independent Data Protection Authority for overseeing processing
If it becomes an Act, it shall extend to the whole of India. The states,
citizens, Indian companies, or body incorporated under Indian law has to comply
with this Act. It also applies to any business carried by a foreign company in
India. The Bill entails that the purpose of data collection and process shall be
clear, specific, and lawful.
The consent of the data principal (citizens) is
necessary for any business to carry on with the processing of data. It provides
the data principals with various rights such as the right to confirmation and
access, correction, data portability, and the right to be forgotten. However,
the Bill states that the data shall be kept as long as the purpose for which the
data was collected has been served.
Exemptions to this law will include events
concerning security of the State; prevention, investigation, and prosecution of
contraventions of the law, journalistic and research purposes. It also exempts
small entities that procure data manually.
It is evident that a best legal theory constitutes simple concepts and deeper
explanations for empirical occurrences. This could best be possible through
comparative constitutional laws. It is suspected that the vast majority of
high-quality comparative public-law scholarship produced over the past decade
has contributed significantly to the mapping and classification of the world of
new constitutionalism, along with formation of appropriate notional structures
for learning comparative constitutional laws more extensively. In short, the
transmission of ideas all over the globe had made comparative constitutional
laws to reach new heights.
Work done by intellectuals of this field is
explanatory, theoretical, regulative and most important ideological.
International deliberations among scholars assisted by advanced technological
instruments, has introduced substantial understanding about various legal and
constitutional mechanisms of different countries. This is all because of a
prosperous frame of information, which made it easy to extract out comparative
research and implement discern perception over the whole nation.
The comparative analysis of a few of the data protection laws and policies made
it clear how the world is more intertwined than we thought. Despite political,
socio-economic, or cultural differences, countries all around the world try to
establish and upgrade their institutions and laws by assessing the same in
For instance, the Indian Constitution is known as a ‘borrowed document'
as various provisions from other nations have been absorbed in the Indian
constitution to suit its polity such as Fundamental Rights, judicial review,
independent judiciary from the Constitution of United States; the concept of
republic and ideals of freedom, equality, and fraternity from French
constitution, etc. In the case of data protection, many countries have adopted
guidelines and regulations of the EU's GDPR such as Japan's amendments to APPI
regarding cross-border transfer was inspired by GDPR.
India's PDPB also borrows
some of its provisions from GDPR such as terms of requiring consent, a right to
be forgotten, breach notification requirements, etc. However, we also observed
in the case of the United States that there need not be a provision in the
Constitution to introduce a new law. Even though the United States does not have
a standardized data protection law for the entire nation, privacy protection is
deemed as “liberty protection” that is, protection of the personal space from
the government, and through this various laws protecting the privacy of US
citizens came into being.
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